IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141201

Docket: S022535

Registry: Chilliwack

Between:

Karlee Michelle
Peterson

Plaintiff

And

Abhi Verma and
Black Top Cabs Ltd.

Defendants

‑ and ‑

Docket: S24111

Registry:
Chilliwack

Between:

Karlee Michelle
Peterson

Plaintiff

And

Jeong Sook Lee,
Blue Ocean Trading Inc.,
Mark Stephen Appleton and Willms Electric Ltd.

Defendants

Before:
The Honourable Madam Justice Dickson

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff, Karlee Peterson, claims damages for
personal injuries sustained in two motor vehicle accidents.  The first accident
occurred on March 30, 2009 when she was a passenger in a taxi that hit a curb
in a Surrey parking lot.  The second accident occurred on April 8, 2010 when
she stopped her car at a red light on a Chilliwack street and was struck from
behind.

[2]            
Ms. Peterson suffered soft‑tissue injuries and related pain
in her head, neck, shoulders, back, and chest areas as a result of the accidents. 
Although her injuries have improved she says they have not resolved entirely,
nor will they likely do so.  In consequence, she seeks awards for pain and
suffering, past and future loss of capacity to earn, loss of housekeeping
capacity, the cost of future care, and special damages.  The parties agree that
Ms. Peterson’s injuries are indivisible and thus that only one global
damages award is required.

[3]            
The defendants admit liability for both accidents.  They go on, however,
to dispute Ms. Peterson’s claims regarding the extent and effects of her
accident‑related injuries.  In doing so, the defendants challenge Ms. Peterson’s
credibility and reliability as a witness.  In particular, they say that she
exaggerated both her pre‑accident activity levels and post‑accident
pain and functional difficulties when she testified at trial.

[4]            
Although pleaded, the defendants did not pursue a seatbelt defence or
argue that Ms. Peterson failed to mitigate her damages.  The primary focus
of argument on both sides was whether she would likely have lost her job as a
police dispatcher due to an incident of off‑duty misconduct in 2011 had
she been working at the time as a full‑time employee without any accident‑related
injuries.

ISSUES

[5]            
The issues for determination are:

1.       What
was the impact of Ms. Peterson’s accident‑related injuries upon her
life function and work capacity?

2.       In
particular, would Ms. Peterson have lost her job as a police dispatcher
due to an incident of off‑duty misconduct but for the effects of the
accidents?

3.       What is
Ms. Peterson’s future prognosis?

4.       What
quantum of damages should be awarded in the light of my findings on the
foregoing questions?

FACTS

[6]            
Before outlining my factual findings, I make the following comments with
respect to credibility and reliability.

[7]            
Counsel for Ms. Peterson submits that she was a credible and
reliable witness.  While acknowledging that she was occasionally careless and
inclined to overstatement, he emphasizes Ms. Peterson’s unfamiliarity with
the courtroom setting and apparent sincerity in describing her experiences and
condition.  He also emphasizes the consistency of Ms. Peterson’s
descriptions of her condition and conduct with those of the descriptions of her
friends, family, colleagues, and treating physician.  All things considered, he
says I should accept at least most of her testimony as generally accurate and
reliable.

[8]            
Counsel for the defendants submits that Ms. Peterson was not a
credible or reliable witness.  In support of this submission, he emphasizes the
frequency of her obvious overstatements and various inconsistencies between her
testimony and that of other, more neutral, witnesses.  For example, he notes
that Ms. Peterson claimed she was a straight‑A student when she was
not, and asserted that she always played baseball when she did so only until
middle school.  He also notes, amongst other things, the difference between her
testimony and that of another witness on the question of whether she was told
the RCMP would reimburse her college tuition.  In cumulative effect, counsel
for the defendants says that Ms. Peterson’s overstatements and the
inconsistencies between her testimony and that of others paint a picture of a
witness whose account cannot be relied upon.

[9]            
There is force in elements of both submissions.  Ms. Peterson was
inclined to overstate some of her pre‑accident activity levels,
understate the effects of her weight problem on her functioning and sometimes
answer questions in a rather careless manner.  That being said, I am not
satisfied that she attempted consciously to mislead the court or that all, or
even most, of her testimony was tainted by weaknesses in some of its aspects.  Rather,
I find that Ms. Peterson was sometimes insufficiently attentive to detail
in some of her answers and tended to recall or interpret events in a manner
somewhat more favourable to her claim than was always strictly accurate.  On
the other hand, much of her testimony was straightforward, balanced and,
importantly, corroborated by that of other credible witnesses.

[10]        
Taking into account all of the foregoing, I conclude that Ms. Peterson’s
testimony must be approached with a measure of caution, but not with a high
level of skepticism.  In particular, I must ensure that those aspects of her
testimony which I accept as reliable accord with the preponderance of
probabilities evident in the surrounding circumstances, given all of the
evidence presented at trial.  The factual findings set out below are made with
this approach borne in mind.

Before the Accidents

[11]        
Ms. Peterson was born on January 26, 1986, in Alberta.  She moved
with her family to Chilliwack, B.C., in 1989 and has lived there since.

[12]        
Throughout her childhood and adolescence, Ms. Peterson was a
generally happy, healthy, and active individual.  She struggled with her weight
and periodic bouts of asthma‑related illness, but was nevertheless
reasonably active and very sociable.  For example, in the winter she sometimes
snowboarded and played physical games such as Rock Band on the Wii video
console.  In the summer, she regularly played tennis, some basketball and, for
a time when she was younger, baseball.  She also hiked regularly with her
friends and engaged in active play with her brother.

[13]        
Ms. Peterson was a strong and diligent student.  She earned good
grades and finished her high school studies in 2004, one semester early.  While
she was a high school student, Ms. Peterson also worked at part‑time
jobs in various capacities.  From January to June 2004, after finishing her
high school courses early, she helped her stepfather renovate hotels in
Whistler.  Ms. Peterson is clearly a person with a strong work ethic and
good future goals.

[14]        
Following her high school graduation in 2004, Ms. Peterson enrolled
at the University of the Fraser Valley.  Her area of particular interest was criminal
justice.  For the first two years of her studies, Ms. Peterson lived at
home with her family and undertook a full course load at UFV.  In May 2008, she
moved out of her mother’s home into her present apartment.  Thereafter, she
continued her studies on a part‑time basis and worked at various jobs to
support herself in her own home.

[15]        
As in high school, Ms. Peterson was a healthy, active university
student.  She remained considerably overweight, however, and continued to
experience occasional difficulties associated with her asthma.  In 2006, she
suffered a knee injury, as a result of which she missed two days of work at the
Pita Pit, but had no long‑lasting consequences.  The same year, she had a
frightening episode of numbness and slurred speech related to medication
ingestion, which she promptly discontinued.  Similar problems did not reoccur. 
There were no other injuries or illnesses of note in Ms. Peterson’s pre‑accident
life.

[16]        
For the most part, Ms. Peterson earned good grades while she was a
UFV student.  Her grades dipped somewhat in 2008 because of a traumatic death
in her family, but they were otherwise mostly As and Bs.  The same year, Ms. Peterson
applied for a job as an RCMP dispatcher, which is a position also known as a
telecommunications operator or "TO".  Ms. Peterson viewed this
job as a possible gateway to other forms of work in the criminal justice field
to which she ultimately aspired.

[17]        
After a rigorous process of testing and an interview, Ms. Peterson
was hired by the RCMP as a trainee TO.  Her training at the Pacific Regional
Training Centre began in January 2009.

[18]        
The PRTC training process was demanding and interesting.  It was
conducted from Monday to Friday for eight hours a day over the course of
approximately seven weeks.  Much of that time was spent in the classroom, with
occasional visits to dispatch centres and regular testing and evaluation.  Of
the 12 students enrolled in the course, nine of them, including Ms. Peterson,
succeeded in passing.

[19]        
After completing her PRTC training, Ms. Peterson began to work as a
trainee TO, Level 1, at the RCMP Dispatch Centre in Chilliwack.  She started in
March of 2009 with eight‑hour shifts, shadowing an assigned trainer on
that trainer’s regular work rotation.  The rotations typically involved a
schedule of two nights on, two days on, and four days off, which was the
pattern Ms. Peterson followed with her trainer.  The goal was to learn the
job thoroughly and to build up endurance to the point that she could complete
shifts of 12 hours’ duration.

[20]        
As a trainee TO, Ms. Peterson’s job classification with the RCMP
was a casual temporary civilian employee.  The Chilliwack Dispatch Centre is
busy and, when Ms. Peterson started there, there were 23 people employed
as full‑time TOs at the centre.  There was also a casual pool of roughly
eight to 10 TOs who were available to augment for absences.  Although defined
numbers of work hours were not guaranteed to TOs in the casual pool,
opportunities for work were generally plentiful.

[21]        
The training process typically lasts for six to 12 months, although it
may be somewhat longer.  The process comes to an end after at least 600 hours
have been worked and a comfort level has been reached regarding the trainee’s
ability to work independently.  At that point, the trainee writes an exam that
covers various aspects of the TO job.  If successful, the trainee is reclassified
as a TO2 and receives a salary increase.

[22]        
The post-training salary and payment structures for TOs were described
at trial by Shelley Mercer, Valerie Campbell, and Ryan Lacey, all of whose
evidence I accept.

[23]        
Ms. Peterson’s work as a trainee dispatcher was busy, challenging
and engaging.  With her trainer’s support and oversight, she took 9‑1‑1
calls and dispatched police officers as required from her workstation located
within a large, open working environment.  Most of her time was spent plugged
into a telephone and video monitors, responding to and documenting a wide range
of calls from the public.  Amongst other things, this work required
considerable concentration, some reaching within the workstation area, the use
of pedals, and a lot of prolonged sitting.

[24]        
Although demanding, Ms. Peterson enjoyed her job as a trainee
dispatcher a great deal and she was good at it.  She learned quickly and impressed
her colleagues, friends, and family with her competence and commitment to her
new job.

The First Accident

[25]        
The first accident occurred on March 30, 2009, shortly after Ms. Peterson
had concluded her PRTC training and started her trainee position at the Chilliwack
RCMP Dispatch Centre.

[26]        
Ms. Peterson and her friend Chelsea attended the Juno Awards in
Vancouver on the day of the first accident.  In order to get there, they drove
from Chilliwack to Surrey.  Ms. Peterson parked her car in a Surrey
parking lot and the two women took the SkyTrain into Vancouver.  After the
ceremony, they attended a couple of nightclubs, consumed some alcohol, and
bought food at a downtown fast food restaurant.  By the time they were ready to
return to the SkyTrain it had stopped running.  As a result, they took a taxi
back to the parking lot in Surrey to retrieve Ms. Peterson’s car.

[27]        
The defendant, Abhi Verma, was the taxi driver who drove Ms. Peterson
and Chelsea from downtown Vancouver to Surrey.  Ms. Peterson sat in the
backseat of the cab and Chelsea sat in the front.  Ms. Peterson fastened
the lap portion of the seatbelt, but moved the shoulder strap under her arm
because her shoulder was exposed and the strap felt uncomfortable.  She and
Chelsea conversed excitedly over the course of the drive.

[28]        
Mr. Verma testified that Ms. Peterson and her friend were
intoxicated and unruly throughout the ride from Vancouver to Surrey.  In
explaining this assessment, he said that they smelled of alcohol, interfered
with the cab’s radio, and spoke in a loud manner.  While I accept that Mr. Verma
gave this evidence in good faith and believes his description applied equally
to both women, I am not persuaded that he is correct.  Rather, I find he
conflated at least some of his observations of the two young women, and, in
particular, I am satisfied that it was Chelsea alone who interfered with the
radio.  He also misinterpreted their excitement over the experience at the
Junos as evidence of intoxication.  I am not satisfied that it was.

[29]        
When he arrived at the parking lot, Mr. Verma drove through the lot
quickly and swerved to avoid hitting speed bumps.  When Ms. Peterson
attempted to direct him to her car, he became distracted and hit an unusually
high cement curb that was located in the middle of the lot.  There was a loud
bang, the taxi flew upward and forward, and then landed and stopped abruptly.

[30]        
When the taxi hit the cement curb, Ms. Peterson’s body was jolted
upward, forward and backward.  When the taxi came to a rest, she quickly got
out because she could smell something that was burning.  In due course, she
paid Mr. Verma, located her car, and began immediately to drive back to
Chilliwack with Chelsea.  En route, her neck and shoulders began to hurt
and she started to feel sore all over her body.

[31]        
The taxicab was damaged when it hit the cement curb in the parking lot. 
The cost of repairs was something in the range of $6,000.

After the
First Accident

[32]        
The day after the first accident, Ms. Peterson awoke to a throbbing
headache.  She felt stiff and sore in her neck, shoulders, chest, and lower
back, and concluded that she should see a doctor.  She phoned her trainer at
the dispatch centre to explain that she would not be at work because she had
been in a car accident.  The same day, she went to see her long‑time
general practitioner, Dr. Ho.

[33]        
Dr. Ho gave Ms. Peterson a note which provided that she was to
be off work for two weeks because of a motor vehicle accident.  He saw her
again the next day and performed a more thorough assessment at that time.  Ms. Peterson
complained of neck and back pain, as well as a headache, and Dr. Ho
conducted an examination.  He diagnosed her as suffering from acute neck and
back strain, prescribed Naproxen and Flexeril, and recommended massage therapy.

[34]        
Ms. Peterson saw Dr. Ho again twice in the month of April,
during which time her symptoms of pain persisted.  She returned to work for two
hours in mid‑April, but was unable to sit for more than two hours as a
result of low back pain.  Dr. Ho extended her recommended time off work to
April 30, to be followed by a gradual return to part‑time work with a
view to building up to full‑time again.  He also recommended massage
therapy and an exercise program, including swimming.

[35]        
Ms. Peterson followed Dr. Ho’s recommendations.  She swam and
used the hot tub at the Chilliwack Leisure Centre, and attended regularly for
massage therapy.  On April 30, 2009, she returned to work as a trainee at the
RCMP Dispatch Centre.  Rather than working eight‑hour shifts each day,
however, she worked only four‑hour shifts, still on the two nights on,
two days on, four days off rotating schedule.

[36]        
Ms. Peterson testified, and I accept, that she found returning to
work as a trainee dispatcher tiring and difficult, even though she was working
on only a part‑time basis.  She experienced a burning sensation between
her shoulder blades and a dull headache as she performed her duties, with
particular trouble turning her neck and reaching for the radio at her
workstation.  After sitting at her workstation for 20 to 30 minutes, Ms. Peterson’s
back would start to hurt, and the pain would sometimes radiate into her legs,
which caused considerable difficulty associated with operating the foot
pedals.  She tried to alleviate these symptoms by shifting, standing, and
stretching, all of which helped her low back, but increased the pain in her
chest and upper back areas.

[37]        
Ms. Peterson found the pain and discomfort that she experienced at
work to be quite distracting.  As a result, she found that learning her new job
was more difficult than it had been before the first accident, which she said,
and I accept, was frustrating for her.  In addition, when she got home from
work, Ms. Peterson would often just lie down and relax, which helped with
the pain but sometimes led to considerable stiffness.  In consequence, she
curtailed many of her physically demanding recreational activities.

[38]        
On June 9, 2009, Ms. Peterson completed a four‑hour shift at
the dispatch centre.  By the end of the shift, however, she concluded that she
simply could not carry on.  I accept that this was an accurate and fair
assessment on Ms. Peterson’s part, taking into account the strong work
ethic that she had always exhibited prior to the first accident.  She said, and
I accept, that sitting made her accident‑related symptoms worse and she
was not functioning at what was, for her, an acceptable level.  She was also
becoming concerned that, unless and until things changed for her physically,
she would be at risk of missing days of work and ultimately her job with the
RCMP may be jeopardized.

[39]        
Ms. Peterson consulted with Dr. Ho, who agreed in general
terms with her assessment of her situation.  He recommended that she stop work
for a time, attend for physiotherapy, and focus fully on her rehabilitation. 
She did so and began the recommended course of physiotherapy in July of 2009.

[40]        
Throughout the summer of 2009, Ms. Peterson attended occasionally
for physiotherapy.  She also swam, hiked, and exercised on a regular basis at
the gym.  In September 2009, she began to see a chiropractor, Dr. Smith,
who provided treatment to her neck, back, and hip areas.  Dr. Smith
recommended related stretches and exercises, all of which Ms. Peterson
performed in her home.

[41]        
Although the various rehabilitation measures that she undertook improved
Ms. Peterson’s symptoms, they did not resolve them completely.  By the end
of the summer of 2009, Dr. Ho referred her to a work hardening program at
the Fraser Valley Physiotherapy and Rehabilitation Centre in an effort to get
her to a point where she could return reliably to work.  The work hardening
program began in October 2009.

[42]        
When Ms. Peterson began the work hardening program, she reported
ongoing daily low back pain and recurring headaches.  She identified
aggravating factors in this regard as including twisting, fast movements,
bending, lifting, and squatting.  She also reported feeling able to perform
about 65 per cent of her daily work and leisure activities.  Her stated goal was
to improve to the point that she could begin a graduated return to work.

[43]        
Ms. Peterson’s attendance at the work hardening program was not
exemplary.  On the contrary, it was distinctly sporadic and poor, as counsel
for the defendants fairly notes.  I accept that this poor attendance was due in
part to bouts of illness, but find it also related to Ms. Peterson’s
desire for more personalized and interactive attention.  It also related to her
belief that she could benefit equally by performing the required exercises on
her own.  Although I accept that she held this belief, I do not accept that she
was right.

[44]        
Regardless of the causes for her poor attendance at the work hardening
program, however, by the end of November 2009 Ms. Peterson’s symptoms had
improved to the point that she was ready to return to part‑time work at
the dispatch centre.  She was discharged from the program in December 2009, and
returned to work on January 6, 2010.  I find that this was a reasonable time to
return to work, given the intervening holiday season.

[45]        
Prior to returning to work, Ms. Peterson consulted with her
manager, Shelley Mercer.  They agreed that Ms. Peterson would start back
to work doing six‑hour shifts, with the goal of gradually increasing
their length.  When she came back to work at the dispatch centre, Ms. Peterson
began to shadow a new trainer, Valerie Campbell.

[46]        
Ms. Campbell is an able and experienced dispatcher.  She worked
closely with Ms. Peterson and was impressed with her performance, which
she described in glowing terms.  Ms. Peterson was happy to be back to
work, although she continued to suffer some pain in her back, a burning sensation
across her shoulder blades and periodic headaches when performing her duties. 
Nevertheless, she persisted and, by March of 2010, was regularly working eight‑hour
shifts.

[47]        
Although Ms. Peterson was back at work in 2010, her daily living
and recreational activities were somewhat limited and curtailed due to her
injuries.  She carried on with most activities, such as cooking and some
housework, but she occasionally relied more than she had in the past on her
mother or roommate for assistance with some of the heavier tasks.  She also
carried on with physical activities such as swimming and walking.  However, she
was somewhat less active than she had been before.

[48]        
Prior to the second accident Ms. Peterson withdrew from courses in
which she was enrolled at the UFV without writing the final examinations.  She
took this step because she could not complete them due to the combined effects
of her ongoing physical discomfort and the demands of her work.

The Second Accident

[49]        
On April 8, 2010, Ms. Peterson was in a second accident.  The
accident occurred when she was driving her Pontiac Sunfire back to work following
her lunch break.  She was stopped at a red light on a Chilliwack street when a
van driven by the defendant Mr. Lee rear‑ended her vehicle.  Mr. Lee
was travelling at a speed of about 40 to 50 kilometres per hour when the
collision occurred.

[50]        
When Mr. Lee’s vehicle hit Ms. Peterson’s vehicle, she was
pushed into a taxi that was stopped ahead of her.  Shortly thereafter, she felt
a second impact from behind, which was caused by the vehicle driven by the
defendant Mr. Appleton rear‑ending Mr. Lee’s van.

[51]        
When the first impact happened, Ms. Peterson’s body jolted
forward.  Although she was wearing a seat belt, her chest hit the steering
wheel, which she gripped tightly, causing her to tense up.  This was the
position she was in when the second, lesser impact occurred.

[52]        
After the second accident, Ms. Peterson moved her vehicle off the
road into a parking lot.  She exchanged information with the driver of the taxi
and was transported by ambulance to hospital, where she was checked over and
released after about an hour.  She returned later to a meeting at work.

After the
Second Accident

[53]        
As in the first accident, Ms. Peterson suffered soft‑tissue
injuries in the second accident.  These exacerbated her pre‑existing
injuries from the first accident.  In the period immediately following the
second accident, Ms. Peterson was again sore all over, with her primary
complaints involving her neck and right shoulder.  Her lower back pain simply
continued as it had been before the second accident took place.

[54]        
Within a few days of the second accident, Ms. Peterson went to see Dr. Ho
at his office.  He recommended that she continue with her exercises,
stretching, swimming, and taking massage and chiropractor treatment as required,
all of which she did.

[55]        
Unfortunately, after the second accident, Ms. Peterson was not
permitted to return to her trainee job at the RCMP.  Her manager, Ms. Mercer,
informed her that she could return when she was able to sustain a full eight‑hour
shift, but not until that was possible.

[56]        
Throughout the summer of 2010, Ms. Peterson continued with her
rehabilitative efforts.  As she was not yet able to get through an eight‑hour
shift due to the exacerbation in her pre‑second accident injuries, she
decided to use the time available to her to return to the UFV, which she did in
September 2010.

[57]        
On January 11, 2011, Ms. Peterson was involved in an incident at a
Chilliwack nightclub.  After having consumed alcohol, she had an unpleasant
encounter with another patron and the police were called to the scene to
investigate the possibility of an assault.  Ms. Peterson was never charged
with assault but, in the course of the event, she mentioned to the officers that
she worked for the RCMP.  This showed distinctly poor judgment.  At another
point, she asked the officer at the scene for a ride home, which he declined to
provide.  When she got home, she exercised poor judgment again by calling the
detachment and providing an unsolicited account of what had transpired.

[58]        
Ms. Peterson lost her job as a trainee dispatcher as a result of
the night club incident.

[59]        
In May 2011, Ms. Peterson began another work hardening program with
the Fraser Valley Physiotherapy clinic.  Again, her attendance was initially
poor, but eventually she was able to complete the program satisfactorily.  By
the time the program was completed, her sitting tolerance was something in the
range of 40 minutes.  At that point, she needed a short break of about
five minutes in order to alleviate the discomfort.

[60]        
In the summer of 2011, Ms. Peterson began to look for alternate
employment. She applied for a dispatch job with another police force and, in
2012, was eventually hired as a dispatcher for a company called Jack’s Towing. 
Although I accept that, as she submits, the Jack’s Towing job was less
demanding than police dispatching, I find that, by this time, Ms. Peterson
believed she was able to carry out the greater demands of a police dispatching
position.  I reach this conclusion based in large measure on the fact that she applied
for a comparable job with the Abbotsford Police.  Unless she thought she could
do the work, I do not believe she would have made such an application. 
However, this does not mean that Ms. Peterson was free of all and any
symptoms.  Rather, in my view, it is a sign of her strong work ethic and
interest in working hard, despite challenges borne of her physical state.

[61]        
Ms. Peterson also continued taking courses at the UFV.  She
obtained her degree and found work in the criminal justice system in various
capacities.  In particular, she worked with Phoenix Drug and Alcohol Society
and the John Howard Society.  She is currently employed on a full‑time
basis as an outreach worker.  Her long‑term goal is to find a permanent
job as a parole officer.  She understands, however, that such jobs are hard to
come by.

[62]        
In total, Ms. Peterson’s gross annual earnings from 2009 to the
date of trial were something in the range of $93,000.

[63]        
As of the trial date, I accept that, as she testified, Ms. Peterson’s
neck and shoulder pain continue to bother her on a regular basis.  In addition,
I accept that she experiences periodic flare‑ups in her lower back, which
pain is usually triggered by prolonged sitting.  She also has occasional
headaches related to her soft‑tissue injuries.  Although unpleasant, I
find that her ongoing pain is not significantly functionally disabling.  It
does, however, limit the period for which she can sit comfortably and curtail
some of her activities.

[64]        
To her credit, Ms. Peterson has been able both to work and study hard
in recent years, despite the discomfort that she experiences.  She addresses
her discomfort by modifying her environment, exercising, and receiving
chiropractic and massage therapy from time to time.

Expert Evidence

[65]        
Ms. Peterson’s general practitioner, Dr. Ho, and Dr. Vaisler,
an orthopedic surgeon she consulted twice in connection with the action,
provided expert evidence.  Both diagnosed soft‑tissue injuries to the
neck and back with incomplete resolution, which diagnoses I accept as
accurate.  These diagnoses were largely based on Ms. Peterson’s account of
her symptoms, which I have found to be largely reliable, despite the fact that
on occasion it was somewhat exaggerated.

[66]        
Both doctors took account of Ms. Peterson’s significant weight
problem, which they acknowledge contribute to her symptoms.  However, in their
opinions, which I accept, her weight problem did not cause or explain her
symptoms.  I also accept that opinion as accurate, given Ms. Peterson’s
pre‑accident state of health and activity level as compared to her state
after the accidents.  The change in this regard was confirmed by the evidence
of the independent witnesses, whose testimony I accept.

[67]        
In the opinions of both Drs. Ho and Vaisler, given the persistence of Ms. Peterson’s
ongoing symptoms, she will likely continue to suffer from neck, shoulder, and
lower back pain for the foreseeable future.  These symptoms can be alleviated
by exercise to some extent, as well as by avoiding prolonged sitting and heavy
lifting.  I further accept this aspect of their opinion evidence.

[68]        
Expert evidence was also provided by Dr. Sovio, who, like Dr. Vaisler,
saw Ms. Peterson in connection with the action.  He found there were no
structural issues, but conceded that people who experience pain of the soft
tissue variety for more than two years are likely to have long‑term problems
with pain.  Dr. Sovio focused primarily on Ms. Peterson’s weight
problem and deconditioning as the source of her physical discomfort.  However,
as I have stated, her weight problem preceded the accidents and I find that her
deconditioning is causally related to their effects.

DAMAGES

Non-pecuniary Damages

[69]        
Non‑pecuniary damages are awarded to compensate a plaintiff for
pain, suffering, loss of enjoyment of life and loss of amenities.  The
compensation awarded should be fair to all parties.  Fairness is measured
against awards made in comparable cases which, though helpful, serve only as a
rough guide to appropriate compensation.  Each case depends on its own unique
facts: Trites v. Penner, 2010 BCSC 882.

[70]        
The list of common factors for consideration when assessing non‑pecuniary
damages includes the age of the plaintiff, the nature of the injury, the
severity and duration of pain, disability, emotional suffering, loss or
impairment of life, impairment of family, marital, and social relationships,
impairment of physical and mental abilities, loss of lifestyle, and the
plaintiff’s stoicism which, as a factor, should not, generally speaking,
penalize the plaintiff: Stapley v. Hejslet, 2006 BCCA 34.

[71]        
The assessment of non‑pecuniary damages is influenced by the
plaintiff’s personal experiences in dealing with his or her injuries and their
consequences.  A functional approach should be adopted.  A clear appreciation
of the individual plaintiff’s loss and need for reasonable solace is the key: Dilello
v. Montgomery, 2005 BCCA 56; Dikey v. Samieian, 2008 BCSC 604.

[72]        
Counsel for Ms. Peterson submits that the range of non-pecuniary
damages established by comparable cases is $70,000 – $80,000.  In support of
his submission he relies on Devilliers v. McMurchy, 2013 BCSC 730, Andrusko
v. Alexander, 2013 BCSC 985 and Schafer v. Whiteley, 2013 BCSC 225.

[73]        
In Devilliers, the 39-year-old plaintiff was a wife and mother
who suffered neck, back and shoulder pain as a result of a rear-end collision.  The
neck and shoulder pain largely resolved within five months of the accident,
however, her chronic low back pain remained severe.  Saunders J. noted that
while the plaintiff retained a considerable level of function due to medicinal
intervention, the intensity of the pain and the potential for it to become
debilitating were key factors in determining the appropriate amount of damages. 
He awarded $75,000 in non-pecuniary damages.

[74]        
In Andrusko, the 26-year-old plaintiff worked in physically
demanding jobs prior to the accident.  His injuries were to the neck, shoulder,
low back and he experienced reoccurring and persistent numbness in his left
leg.  The plaintiff’s neck and shoulder injuries largely resolved within a year
of the accident, but his low back pain was chronic and sometimes severe.  These
injuries curtailed the plaintiff’s work and recreational activities.  Fitzpatrick
J. awarded $80,000 in non-pecuniary damages.

[75]        
In Schafer, the 30-year-old plaintiff led an athletic lifestyle
prior to the accident.  Soft tissue injuries to the plaintiff’s neck were
largely resolved by the trial date, however, her low back pain continued on
intermittent basis.  In awarding her $70,000 in non-pecuniary damages, Halfyard
J. found that the plaintiff’s recreational, social, and employment activities
had been adversely affected by her injuries and it was unlikely that she would
be able to pursue her desired career as a full-time physical education teacher.

[76]        
In support of his submission, counsel for Ms. Peterson emphasizes
that Ms. Peterson was a healthy, physically active young woman before the
accidents.  Immediately before the first accident she had just achieved a major
goal by getting a job in the criminal justice field, which was a source of
great excitement and satisfaction for her.  Since the accidents, however, Ms. Peterson’s
recreational and daily living activities have been curtailed and her new career
with the RCMP brought to a grinding halt, all of which has been distressing and
deeply disappointing.

[77]        
Defence counsel submits the appropriate award for non-pecuniary damages
is $40,000 – $60,000.  In support of his submission he relies upon Carter v.
Zhan, 2012 BCSC 595; Frech v. Langley, 2012 BCSC 1230 and Jiwani
v. Borodi, 2014 BCSC 1164.

[78]        
In Carter, the plaintiff was awarded $35,000 in non-pecuniary
damages.  At the time of the accident, she was 32 years old, not overly active
and on medical leave from her seasonal employment as a Shiatsu therapist.  Verhoeven
J. found that over a three-year period the plaintiff "suffered from mild
to moderate soft tissue injuries to her neck, jaw, back, and pelvic girdle".
These injuries were not permanent and, while she suffered some emotional pain
and loss of enjoyment of life during this period, the plaintiff did not suffer
a loss of life style and was only somewhat restricted in her physical
activities.

[79]        
In Frech Truscott J. awarded the 31-year-old plaintiff $35,000 in
non-pecuniary damages.  The plaintiff was injured in two accidents and suffered
soft tissue injuries to her neck and upper back, pain in her right shoulder and
arm, and tension headaches.  The pain was not debilitating, although it would
likely continue.  The plaintiff had made physical improvements following the
accident and was able to carry on with her pre-accident activities.

[80]        
In Jiwani, the 52-year-old plaintiff suffered soft tissue
injuries in three separate motor vehicle accidents.  Prior to the accidents, he
worked as a car salesman but lost his job when he could not maintain the
minimum sales requirement.  His loss of productivity was attributed to his
injuries.  The soft tissue injuries were primarily to the plaintiff’s neck and
back.  The neck pain and headaches resolved within approximately six months of
the first accident, while the back pain at the time of the trial continued to
impact the plaintiff’s sleep, mood, and to an extent his disposition.  Sigurdson
J. found that while the plaintiff was not pain free, the back pain would
improve and at worst cause only modest discomfort.  He awarded $65,000 in
non-pecuniary damages.

[81]        
In support of his submission, counsel submits that Ms. Peterson
suffered mild to moderate soft injuries in the first accident.  These injuries
were moderately exacerbated as a result of the second accident and largely
resolved within 12 months thereafter.  Her ongoing subjective complaints
of pain are not supported by objective evidence of injury and have lasted beyond
the normal recovery period.  In addition, some of her ongoing symptoms and
complaints are better explained by her weight.

[82]        
I have found that the facts lie somewhere in between those suggested by
counsel for the plaintiff and the defendants.  In particular, I have found that
all of Ms. Peterson’s soft‑tissue injuries have not resolved and
that they will continue to cause her discomfort on an indefinite basis.  Taking
into account all of my factual findings, as outlined in these reasons for
judgment, the case authorities, and the factors cited by counsel, I conclude
that an award of $60,000 for non‑pecuniary loss is appropriate and make
such an award.

Loss of Housekeeping Capacity

[83]        
The loss or impairment of the plaintiff’s capacity to perform
housekeeping services is compensable.  The governing principles are outlined by
Newbury J.A. in Dykeman v. Porohowski, 2010 BCCA 36.  These principles
were referred to in X. v. Y., 2012 BCSC 37, by Dardi J. as
follows:

[246]    In Dykeman v.
Porohowski, 2010 BCCA 36, Newbury J.A. at para. 28 summarized the
governing principles with respect to awarding damages for the loss or
impairment of housekeeping capacity.  She affirmed that damages for the loss of
housekeeping capacity may be awarded even though the plaintiff has not incurred
any expense because housekeeping services were gratuitously replaced by a
family member.  Recovery may be allowed for both the future loss of the ability
to perform household tasks as well as for the loss of such abilities prior to
trial.  The amount of compensation awarded must be commensurate with the
plaintiff’s loss: Dykeman at para. 29.

[84]        
Family members often perform household tasks previously performed by an
injured plaintiff.  In McTavish, the Court of Appeal stated:

…when family members have
gratuitously done the work the plaintiff can no longer do and the tasks they
perform have a market value, that value provides tangible indication of the
loss the plaintiff has suffered and enables the court to assign a specific
economic value in monetary terms to the loss.

[85]        
However, when housekeeping services have been provided by other
household members a claim for compensation must be carefully scrutinized. 
Although grievous injury need not be established, the court should ask whether
the services went above and beyond the ordinary give and take to be expected in
a home, and were required by the plaintiff’s injuries or would have been
performed in any event.  A relatively minor adjustment of duties within a
household will not justify a discrete award for a loss of housekeeping
capacity.  If housework has been rendered more difficult and time consuming due
to injuries, the loss is more appropriately addressed in a non‑pecuniary
damages award: Dykeman; Campbell v. Banman, 2009 BCCA 484; Travis
v. Kwon, 2009 BCSC 63.

[86]        
Counsel for Ms. Peterson submits this is a case in which a
reasonable award would be based on the amount Ms. Peterson now pays to her
mother for heavy housekeeping services.  This amounts to something in the range
of $700 a year.  In time, he concedes that Ms. Peterson may again have
roommates or family members who live with her and who will undertake the
heavier tasks that her mother currently performs for $20 an hour.  All things
considered, he says an award in the range of $15,000 for her loss of
housekeeping capacity is reasonable.

[87]        
I cannot agree that a separate award for loss of housekeeping capacity
is justified on the evidence and my factual findings.  Rather, I find that the
discomfort and loss associated with Ms. Peterson’s injuries in her
activities of daily living, including housekeeping, has been incorporated and
covered by the non‑pecuniary damages award I have made.

Past Loss of Earning Capacity

[88]        
The governing principles that apply to past loss of earning capacity are
summarized in Hardychuk v. Johnstone, 2012 BCSC 1359 as follows:

[175]    An award of damages for loss of earning capacity,
whether in the past or the future, represents compensation for a pecuniary
loss.  The goal is to restore the plaintiff to the position he or she would
have occupied but for the defendant’s negligence.  Accordingly, compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the accident-related injuries: Rowe v.
Bobell Express Ltd., 2005 BCCA 141; M.B. v. British Columbia, 2003
SCC 53; Gregory v. Insurance Corporation of British Columbia, 2011 BCCA
144.

[176]    Pursuant to s. 98 of the Insurance (Vehicle)
Act, R.S.B.C. 1996, c. 231, a plaintiff is entitled to recover damages
for only his or her past net income loss.  In the ordinary course this means
the court must deduct the amount of income tax payable from lost gross
earnings: Hudniuk v. Warkentin (2003), 9 B.C.L.R. (4th) 324.

[177]    The burden of proof of actual past events is a
balance of probabilities.  An assessment of loss of both past and future
earning capacity, however, involves consideration of hypothetical, not actual,
events.  The plaintiff is not required to prove hypothetical events on a
balance of probabilities.  Rather, the future or hypothetical possibility will
be taken into consideration as long as it is a real and substantial possibility
and not mere speculation: Athey; Falati v. Smith, 2010 BCSC 465;
aff’d 2011 BCCA 45.

[178]    As with the loss of
future earning capacity, the court’s task is to assess damages for past loss of
capacity rather than to calculate them mathematically.  Allowances for
contingencies should be made and the award must be fair and reasonable taking into
account all of the circumstances: Falati.

[89]        
Counsel for Ms. Peterson seeks an award of $220,000 for Ms. Peterson’s
past loss of income.  In his written submission, he sets out in detail the
mathematical basis upon which this figure is calculated.  The essential
premises underlying the calculation are that, but for the accidents, Ms. Peterson
would not have lost her TO job as a result of the nightclub incident because
she would have been a fully‑qualified TO at the time, not a trainee who
was unable to attend at work due to her injuries.  In these circumstances, Ms. Peterson’s
counsel submits that, like her colleague Mr. Lacey in a similar incident, Ms. Peterson
would likely simply have been reprimanded.  She would also have continued to
work full‑time as a TO at the Chilliwack RCMP Dispatch Centre, not only
on an ordinary full‑time basis, but also completing substantial overtime
hours as Mr. Lacey testified he has done.

[90]        
The $220,000 figure sought represents the difference between what
counsel calculates would have been earned by Ms. Peterson, assuming the
foregoing hypothetical facts, and what she actually earned.  The calculation is
net of taxes, except with respect to possible overtime earnings.

[91]        
Defence counsel admits Ms. Peterson’s claim for past wage loss from
the date of the first accident up to the time that she asked to be discharged
from the work hardening program in November of 2009.  He says, however, that
there is no clear and convincing evidence of ongoing injury that prevented her
from working regular hours thereafter up to the second accident.  He also
admits Ms. Peterson’s claim for wage loss from the second accident up to
the date of the nightclub incident in January of 2011.

[92]        
I agree with Ms. Peterson’s counsel that, but for the accidents, she
would likely not have lost her job as a trainee dispatcher due to the nightclub
incident.  Rather, like Mr. Lacey before her, she would likely have been
reprimanded but been able to continue to work full‑time or near full‑time
hours at the Chilliwack Dispatch Centre.  I do not accept, however, that Ms. Peterson
would likely also have worked overtime hours throughout this period.  Rather,
taking into account her academic bent, her goals, and her conduct in the past,
I find that, as in the past, she would likely have continued to study part‑time
at UFV with a view to obtaining her degree and moving up within the criminal
justice system in various jobs.  I also find that, by approximately the time of
trial, she would have been ready to move on from her dispatch position to a
different kind of job, probably of the sort that she now seeks as a parole
officer.

[93]        
The $220,000 calculation produced by Ms. Peterson’s counsel includes
approximate gross earnings of $10,000 a year in overtime earnings, which I have
found she would not have earned due to her continuing studies and likely work
pattern.  Adjusting for that difference and recognizing that I am dealing with
a hypothetical situation concerning which mathematical precision is impossible,
I assess and award damages for Ms. Peterson’s past loss of income at
$150,000.

Loss of Future Earning
Capacity

[94]        
The governing principles with respect to loss of future earning capacity
are also summarized in Hardychuk:

[192]    A claim for loss of future earning capacity raises
two key questions:  1) has the plaintiff’s earning capacity been impaired by
his or her injuries; and, if so 2) what compensation should be awarded for the
resulting financial harm that will accrue over time?  The assessment of loss
must be based on the evidence, and not an application of a purely mathematical
calculation.  The appropriate means of assessment will vary from case to case: 
Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353; Pallos v. Insurance
Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260; Pett. v. Pett,
2009 BCCA 232.

[193]    The assessment of damages is a matter of judgment,
not calculation: Rosvold v. Dunlop, 2001 BCCA.

[194]    Insofar as is possible, the plaintiff should be put
in the position he or she would have been in, from a work life perspective, but
for the injuries caused by the defendant’s negligence.  Ongoing symptoms alone
do not mandate an award for loss of earning capacity.  Rather, the essential
task of the Court is to compare the likely future of the plaintiff’s working
life if the accident had not happened with the plaintiff’s likely future
working life after its occurrence: Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106; Moore v. Cabral et. al., 2006 BCSC 920; Gregory v.
Insurance Corp. of British Columbia, 2011 BCCA 144.

[195]    There are two possible approaches to assessment of
loss of future earning capacity:  the "earnings approach" from Pallos;
and the "capital asset approach" in Brown.  Both approaches
are correct and will be more or less appropriate depending on whether the loss
in question can be quantified in a measureable way: Perren v. Lalari,
2010 BCCA 140.

[196]    The earnings approach involves a form of
math-oriented methodology such as i) postulating a minimum annual income loss
for the plaintiff’s remaining years of work, multiplying the annual projected
loss by the number of remaining years and calculating a present value or ii)
awarding the plaintiff’s entire annual income for a year or two: Pallos;
Gilbert v. Bottle, 2011 BCSC 1389.

[197]    The capital asset approach involves considering
factors such as i) whether the plaintiff has been rendered less capable overall
of earning income from all types of employment; ii) is less marketable or
attractive as a potential employee; iii) has lost the ability to take advantage
of all job opportunities that might otherwise have been open; and iv) is less
valuable to herself as a person capable of earning income in a competitive
labour market: Brown; Gilbert.

[198]    The principles that apply in assessing loss of
future earning capacity were summarized by Low J.A. in Reilly v. Lynn,
2003 BCCA 49:

101      The relevant principles may be briefly summarized.
The standard of proof in relation to future events is simple probability, not
the balance of probabilities, and hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27.  A plaintiff is entitled to compensation for real
and substantial possibilities of loss, which are to be quantified by estimating
the chance of the loss occurring: Athey v. Leonati, supra, at para. 27,
Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.).  The
valuation of the loss of earning capacity may involve a comparison of what the
plaintiff would probably have earned but for the accident with what he will
probably earn in his injured condition: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the
overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995]
B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the Court is to assess
the losses, not to calculate them mathematically: Mulholland (Guardian ad
litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).  Finally,
since the course of future events is unknown, allowance must be made for the
contingency that the assumptions upon which the award is based may prove to be
wrong: Milina v. Bartsch, supra, at 79…

[95]        
Counsel for Ms. Peterson submits that she will likely continue to
suffer a loss of earning capacity into the future due to her injuries.  Given
her relative youth and the early stage of her criminal justice career that she
was at when the accidents happened, he says the best approach for quantifying
her loss is the capital asset approach, using a comparison between what she
earns now and what she would have earned as a dispatcher as a guideline.

[96]        
On a capital asset analysis, counsel says that Ms. Peterson has
been rendered less capable overall of earning income due to her limited tolerance
for sitting.  This, he says, will prevent her from pursuing jobs that involve a
lot of work with a computer.  She is also less marketable, he says, as she will
require accommodations.  Further, she will be unable to obtain certain jobs
within the federal government through internal postings because she does not
have the same opportunity that she would have had if she had stayed with the
RCMP, which she would have done but for the accident.  Finally, she is less
valuable to herself as a person capable of earning income, as revealed by the
loss of her job with the RCMP.

[97]        
In his written submission, again, Ms. Peterson’s counsel sets out a
series of calculations based on her current income and what he says she would
have been making had she remained an RCMP dispatcher.  Given those
calculations, he submits that Ms. Peterson’s loss of future earning
capacity should be quantified at something in the range of $100,000.

[98]        
Counsel for the defendants, on the other hand, submits that Ms. Peterson
has not proved a real and substantial possibility that she will suffer a future
wage loss or loss of capacity to earn on account of the ongoing effects of her
accident‑related injuries.

[99]        
I agree with Ms. Peterson’s counsel that a capital asset approach
to assessment of any future loss she may suffer is appropriate in this case for
the reasons he outlined.  I also agree that she has a good work ethic that will
likely allow her in future to achieve her goal of becoming a parole officer,
despite the fact that she suffers some ongoing residual symptoms.  I do not
accept, however, that an award for her future loss should be based on the sort
of hypothetical factors and mathematical calculations cited by counsel. 
Rather, it should take into account the factors he enumerates in his capital
asset analysis.  That being said, while I accept that Ms. Peterson’s
access to in-house postings has been compromised by her departure from the RCMP
the extent of the compromise is not so great as he suggests.

[100]     Doing the
best I can to account for all of the factors incorporated within both her original
and altered positions, I assess the value of Ms. Peterson’s future loss of
earning capacity at $20,000.

Cost of Future Care

[101]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him or her to a pre‑accident
condition, if possible.  If full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate care.  A
future care award is based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health. 
An assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9; Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Spehar (Guardian ad litem
of) v. Beazley, 2002 BCSC 1104.

[102]     The test
for determining the appropriate award for the cost of future care is an
objective one based on medical evidence.  For an award of future care, there
must be medical justification for claims for the cost of future care, and the
claims must be reasonable.  Although it is unnecessary for a physician to
testify that each and every item of care claimed is medically necessary, there
must be an evidentiary link between the medical assessment and the care
recommended by a qualified health care professional: Milina; Gignac
v. Rozylo, 2012 BCCA 351.

[103]     In
addition to being medically necessary, future care costs must be justified
because they will likely be incurred by the plaintiff.  The award of damages is
thus a matter of prediction as to what will happen in the future.  If a
plaintiff has not used a particular item or service in the past it may be
inappropriate to include its cost in a future care award:  Izony v. Weidlich,
2005 BCSC 1315.

[104]     The
extent, if any, to which a future care cost should be adjusted for
contingencies depends on the care needs of the plaintiff.  In some cases
negative contingencies are offset by positive contingencies and a contingency
adjustment is not required.  In other cases, however, the award will be reduced
based on the prospect of improvement in the plaintiff’s condition or increased
based on the prospect that additional care will be required: Gilbert v.
Bottle, 2011 BCSC 1389.

[105]     Counsel
for Ms. Peterson seeks an award in the range of $4,000 to $5,000 for
payment of future treatment, such as massage and chiropractic care for pain
relief for flare‑ups.  Counsel for the defendants submits there is no
clear and convincing evidence that Ms. Peterson requires any future care
for treatment of her accident‑related injuries.

[106]     I have
accepted that Ms. Peterson will continue to experience occasional flare‑ups
in her pain related to the accident in the future.  I also accept that
occasional passive therapies, such as massage, are recommended by health care
professionals and a reasonable form of treatment when they occur.  Accepting
that the future cannot be predicted with mathematical precision, I award the
sum of $2,000 for the cost of future care.

Special Damages

[107]     Counsel
for the defendants admits that Ms. Peterson is entitled to an award of
special damages claimed with respect to her attendance at the Fraser Valley
Physiotherapy, as well as massage therapy and chiropractic care, for three
months after each accident.  He contests any further claim to damages for
massage and chiropractic care after this period, as he says they are not
reasonable or medically indicated.  The defendants also admit to special
damages claimed for prescription medication.

[108]     At the
conclusion of the trial, counsel for Ms. Peterson wisely abandoned several
of the items previously claimed as special damages.  I accept that what remains
on the schedule presented is generally reasonable.  Based on that revised
schedule, I award the sum of $5,000 for special damages.

[109]     So those
are my reasons for judgment.

[ DISCUSSION REGARDING COSTS ]

[110]     THE
COURT:  All right, well, I will simply give you leave to make written
submissions as to costs in the event that you are unable to reach agreement,
and to do so on dates as agreed between counsel.

"DICKSON
J."